A recent and alarming statistic shared by the Suffolk County Department of Health Services indicates that more than 80% of nitrogen found in Long Island’s surface waters is attributable to sewage. As if the idea of sewage constituents making their way into our lakes and bays isn’t concerning enough, the environmental impacts of nitrogen on water quality are as varied as they are serious.

It is widely accepted that high levels of nitrogen in surface water leads to algae blooms that can be toxic to animals and humans. Such is the case with blue-green algae that has been appearing more and more frequently in Long Island’s freshwater bodies. Swimming in or ingesting water contaminated with the the algae can cause severe illness, neurological damage, and even death is severe cases. Pets are particularly susceptible to exposure and injury.

Even algae that is not toxic, such as brown tide, can be harmful in high concentrations because it depletes dissolved oxygen in water and blocks sunlight infiltration, both of which contribute to marine life die-off. Some may recall the series of fish die-offs in Riverhead back in 2015. Many commenters attributed those events to high concentrations of algae from sewage and correspondingly low levels of oxygen in the Peconic River.

In recognition of ongoing efforts to stem the tide of nitrogen flowing into our surface waters, Suffolk County has taken another step toward reducing the levels of nitrogen released into the environment from private, onsite sanitary systems. The new standards, approved by the Suffolk County Legislature and the Suffolk County Department of Health, largely affect Article 6 of the Suffolk County Sanitary Code. They take effect July 1, 2021, and apply to all applications submitted to the Office of Wastewater Management (OWM) after that date.

In their broadest terms, the new standards establish specified events that trigger the requirement for the installation of an “Innovative/Alternative Onsite Wastewater Treatment System” (aka I/AOWTS) in lieu of a traditional sanitary system, such as a septic tank or cesspool. The changes also expand the list of I/AOWTS technologies allowed for use on properties in Suffolk County, and modify the separation distance requirements for I/AOWTS generally, among other changes.

The triggers for the installation of an I/AOWTS are of paramount importance. In short, an I/AOWTS will be required for all “New Construction” and all “Major Reconstruction” projects. New construction for single-family residences includes:

  • Construction of a new residence
  • Knock-down and rebuild of a residence
  • Addition to or modification of an existing residence requiring the addition or modification of a sanitary system
  • The addition of bedrooms to greater than 5

New construction for “Other Construction” (i.e. commercial, multi-family, and mixed use) includes:

  • Construction of a new, detached structure that requires a sanitary system
  • Addition to or modification of an existing structure that requires the addition or modification of a sanitary system
  • A change of use requiring the installation of a sanitary system or increase in wastewater capacity

“Major reconstruction” is universally defined for both single-family and other construction projects as any project for which the cost of the project exceeds 50% of the market value of the existing structure. Whether a project is a Major Reconstruction is determined by comparing a design professional’s construction cost estimate with an appraisal of the existing building prepared by a licensed real estate appraiser. As of July 1, 2021, any projection for which a conventional septic system is proposed will require submission of OWM’s new “Verification of Major Reconstruction Certification” supported by a constriction cost estimate and appraisal.

Triggers for Installation of an I/AOWTS for Single-Family Residence

  • Construction of a new residence
  • Knock-down and rebuild of a residence
  • Addition of one or more bedrooms to an existing residence and the number of bedrooms will exceed 5, unless more than 5 bedrooms were already approved pursuant to a prior OWM application
  • Major Reconstruction

Triggers for Installation of an I/AOWTS for “Other Construction” Projects (including commercial, multi-family and mixed use projects)

  • Construction of new commercial or industrial building
  • Addition to an existing commercial or industrial building requiring a new, expanded, or relocated sanitary system
  • Change of use that exceeds prior approved design flow
  • Major Reconstruction

There are, of course, exceptions to these rules, such as projects involving a residence or building within a proposed sewer district. Accordingly, all applications to OWM after July 1, 2021, must be compared against the new standards to determine (1) whether the project triggers the requirement for an I/AOWTS; and (2) whether an exception to the requirement applies.

On July 1, 2021, the date on which the new standards take effect, the Health Department will public new guidance documents (Nos. 8 [amended], 38, and 39), covering the triggers for referral of a single-family residential project to OWM, and when an I/AOWTS is required; triggers for requiring I/AOWTS for “Other Construction” project; and guidelines for determining whether a project is a “Major Reconstruction”, respectively. OWM will also publish its new Verification form for Major Reconstruction projects.

In 2017, 8 Bayberry Rd, LLC submitted an application to the Zoning Board of Appeals of the Village of Bellport (“ZBA”) seeking several variances to convert an existing three-car garage into a squash court and work out area resulting in a new 23 foot high building in the front yard, ten feet from the side yard lot line and five feet from the front yard lot line. The neighbors, Debra and Stuart Abramovitz challenged the ZBA decision via Article 78 Proceeding.

The Supreme Court, Suffolk County, in Debra Abramovitz v. Zoning Board of Appeals of the Village of Bellport, Supreme Court, Suffolk County, Index No. 00273-2018, Hon. John H Rouse, June 11, 2018, ordered that the proceeding be transferred to the Appellate Division, Second Department for a determination pursuant to CPLR § 7804(g). CPLR 7804(g) states, “[h]earing and determination; transfer to appellate division. Where the substantial evidence issue specified in question four of section 7803 is not raised, the court in which the proceeding is commenced shall itself dispose of the issues in the proceeding. Where such an issue is raised, the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata, without reaching the substantial evidence issue. If the determination of the other objections does not terminate the proceeding, the court shall make an order directing that it be transferred for disposition to a term of the appellate division held within the judicial department embracing the county in which the proceeding was commenced …” (emphasis added). CPLR § 7803 states the questions that may be raised in an Article 78 Proceeding with section 4 stating, “whether a determination is made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.” Therefore, when the question is raised as to whether an agency’s post hearing determination is supported by substantial evidence, it may only properly be raised in a certiorari proceeding when the agency’s findings of fact are challenged. See Mckinney’s Supplementary Practice Commentaries to CPLR §7804(g), Vincent Alexander, C7804:8, Transfer to the Appellate Division (2019). The Supreme Court noted the four points of error that the petition claimed including that; (i) the ZBA granted a use variance rather than an area variance, (ii) the area variance was significant and without basis in the record, (iii) the decision changed a front yard to a back yard which the ZBA should have considered a use variance, and (iv)  by granting the variance, the ZBA authorized the applicant to enlarge the degree of nonconformity of the prior non-conforming garage.

The Appellate Division, Second Department in Abramovitz, et al., v. Zoning Board of Appeals of the Inc. Village of Bellport, et al., Index No. 2018-12810, dated May 12, 2021, held that the Supreme Court erred in transferring the proceeding to the Appellate Division pursuant to CPLR 7804(g) but decided the proceeding on its merits in the interest of judicial economy. Specifically, the Court stated, “the Supreme Court erred in transferring the proceeding to this Court pursuant to CPLR 7804(g), since the determination to be reviewed was not made after a trial-type hearing at which evidence was taken, held pursuant to direction of law (see CPLR 7803[4]; Matter of Sasso v Osgood, 86 NY2d 374, 384; Matter of TAC Peek Equities, Ltd. v Town of Putnam Val. Zoning Bd. of Appeals, 127 AD3d 1216, 1216; Matter of Greencove Assoc., LLC v Town Bd. of the Town of N. Hempstead, 87 AD3d 1066, 1067-1068). Accordingly, the determination is not subject to substantial evidence review. Rather, the question before us is “whether the determination was affected by an error of law, or was arbitrary and capricious or an abuse of discretion, or was irrational” (Matter of Greencove Assoc., LLC v Town Bd. of the Town of N. Hempstead, 87 AD3d at 1067 [internal quotation marks omitted]; see CPLR 7803[3]; Matter of TAC Peek Equities, Ltd. v Town of Putnam Val. Zoning Bd. of Appeals, 127 AD3d at 1216-1217.”

Ultimately, the Appellate Division found that the ZBA determination granting the variances to allow for the squash court and work out area to be constructed had a rational basis. Noting the “broad discretion” and “great deference” afforded to Zoning Boards in granting area variances and interpreting the zoning code respectively, the Court found that the ZBA met the required balancing test and considered the relevant statutory factors.  Therefore, the Court upheld the ZBA determination.

Last month, the Appellate Division, Third Department, held the Mined Land Reclamation Law (“Mining Law”), as amended, does not preempt certain local zoning laws which prohibit mining. Specifically, in Town of Southampton v New York State Dept. of Envtl. Conservation, 2021 NY Slip Op 03351 [3d Dept 2021], the Appellate Division held the statute “clearly recognizes that the local laws of the municipality are determinative as to whether an application [for mining] can be processed.”

The Mining Law, as Amended

The Mining Law is codified in Article 23, Title 27, of the Environmental Conservation Law (“ECL”), and grants the New York State Department of Environmental Conservation (“NYSDEC”) broad authority to regulate the mining industry state-wide. To encourage sound mining, manage depletable resources, and assure reclamation of mined land, the Legislature enacted the Mining Law to adopt standard and uniform restrictions and regulations to replace a patchwork system of local ordinances.

Notably, in 1991, the Legislature amended (“Amendment”) the Mining Law  to prohibit a state agency from considering an application for a mining permit within counties with a population of one million or more which draw their primary source of drinking water for a majority of county residents from a designated sole source aquifer if local zoning laws or ordinance prohibit mining uses within the area proposed to be mined (ECL § 23-2703[3]).

Mining Operations, Applications, and the Settlement

Sand Land Corporation (“SLC”) is the owner and permittee of a sand and gravel mine located on a 50-acre parcel (“Property”) situated in the Town of Southampton (“Southampton”). Wainscott Sand and Gravel (“WSG”) is the operator of the mine. In 2014, SLC and WSG applied to the NYSDEC for a modification permit seeking a vertical and horizontal expansion of mining operations. In April 2014, the NYSDEC issued a negative declaration pursuant to the State Environmental Quality Review Act, but, in 2015, denied the permit application.

SLC and WSG requested a hearing to challenge the NYSDEC’s 2015 denial. An Administrative Law Judge issued two decisions: one in January 2018, regarding a procedural issue, and the other in December 2018, which denied the relief sought. Both decisions held the Amendment prohibited the NYSDEC from processing the permit applications because Southampton, located within Suffolk County, has a local law prohibiting mining.[1]

In September 2018, during the time period between the two decisions, the NYSDEC issued notice of an intent to modify to SLC and WSG – that it would modify the existing permit to require them to cease all mining activity other than reclamation. In October 2018, SLC and WSG submitted an application to the NYSDEC to renew the mining permit, and to modify the permit to increase mining depth by 40 feet.

In February 2019, the NYSDEC and SLC and WSG entered into a settlement agreement (“2019 Agreement”), whereby, among other things, the NYSDEC agreed to (i) rescind its notice to modify and (ii) issue a renewal permit for an expanded life of the mine boundaries, and (iii) process the October 2018 permit application to deepen the mine by 40 feet. In March 2019, the NYSDEC issued the renewal permit. Also in March 2019, the NYSDEC relied upon the 2014 negative declaration to issue an amended negative declaration with respect to deepening the mine, and, in June 2019, issued the modification permit to deepen the mine. Apparently, the NYSDEC interpreted the Amendment to apply only to new permits or permits seeking substantial modifications.

Petitioners’ Article 78 Proceeding and Appeal

In April 2019, Southampton, several civic organizations, and neighboring landowners (collectively, “Petitioners”) commenced an Article 78 proceeding seeking to annul the 2019 Agreement, the renewal permit, and the amended negative declaration. In June 2019, Petitioners filed a supplemental petition seeking to annul the modification permit. The Supreme Court, Albany County, dismissed the petition. Petitioners appealed, and the Appellate Division modified.

The Appellate Division considered Petitioners’ claims in the context of the Mining Law and Amendment. In order to assure uniformity in restrictions and regulations across the State, the Legislature included an express supersession clause, which provides that the Mining Law shall supersede all local laws relating to the extractive mining industry. However, the court noted that in Frew Run Gravel Prods., Inc. v Town of Carroll, 71 NY2d 126 [1987], the Court of Appeals distinguished between local laws which were superseded and those which were not. Local pertaining to the actual operation and process of mining were subject to the supersession clause, but other local laws fell outside the supersession clause’s preemption. To hold otherwise would curtail a town’s power to adopt zoning regulations and to decide whether a mining operation, like other uses governed by a zoning ordinance, should be permitted in a particular zoning district.

The Appellate Division also noted that, although Southampton prohibited mining, SLC’s and WSG’s operation is a preexisting, nonconforming use. While preexisting, nonconforming uses are constitutionally protected and permitted to continue (notwithstanding contrary provisions of an ordinance), such uses are considered detrimental to a zoning scheme, and overriding public policy aims at their reasonable restriction and eventual elimination.

Moreover, the court emphasized the Amendment to the Mining Law: “The [A]mendment is an outlier in a statute whose purpose is to promote uniformity, as it articulates a mandate directed at a specific geographic area – Long Island, where [Southampton] is located and where zoning laws prohibit mining.”

SLC and WSG, et al., argued that, per the NYSDEC’s interpretation, the Amendment applies only to new permits or permits seeking substantial modifications, and the 40-foot expansion within the existing mine footprint was immaterial because it did not request a horizontal expansion. Although the Supreme Court agreed and held an alternative characterization would be “nonsensical,” the Appellate Division disagreed.

When interpreting a statute, courts first turn to the text as the best evidence of the Legislature’s intent. Generally, a statute’s plain language is dispositive. The court held “[the Amendment] is not vague or ambiguous; it is concise and clear. Contrary to all other permit applications received by [the NYSDEC], an application received from an area protected under [the Amendment] must be put on hold until the status of the local laws is determined.”

The Amendment contains no qualifications on what type of permit must be put on hold – it applies to all applications. Courts cannot amend statutes by inserting words that are not there, and if the Legislature intended to limit the type of permit applications to which the Amendment applied, it would have done so. “After all,” the court noted, the Amendment “very precisely limited the geographic area to which it applies.”

The Appellate Division also held that, given the unambiguous text and the question of pure statutory interpretation, deference to the NYSDEC’s competence or expertise was not required; such a question depends only on an accurate apprehension of Legislative intent.

Here, the Amendment clearly recognizes the local laws of Southampton are determinative regarding whether applications can be processed. Southampton’s zoning ordinance prohibits mining, and so the NYSDEC cannot process the application – let alone issue the permit. Therefore, the NYSDEC’s act of issuing the permits contravened the Amendment and, as such, was arbitrary and capricious.

[1] The Court noted in a footnote that it is undisputed Suffolk County is an area with a population of over one million that draws its primary drinking water from a sole source aquifer.

In 2018, the Federal Communications Commission (“FCC”) issued an Order governing the installation of small cell nodes and other telecommunications facilities in an effort to speed up the deployment of the newest generation of wireless technology known as 5G.  A small cell node typically consists of a single small antenna and related accessory equipment placed on existing utility poles or street lights within public rights-of-way.  The FCC Order was intended to remove state and local government barriers to 5G deployment by, among other things, providing providers with easier access to existing infrastructure in public rights-of-way.  It also limits the amount of fees that can be imposed for use of public rights-of-way and requires municipalities to adhere to the shorter timelines or “shot clocks” for the processing of applications.  However, the Order preserves a local community’s ability to manage and protect local land-use interests by allowing objective and reasonable aesthetic regulations that are no more burdensome than those applied to other types of infrastructure deployments.

While some municipalities have laws that regulate telecommunications facilities, most apply only to antenna towers and other macro cell sites – not small cells. As service providers seek to install the small cells needed to support their new 5G networks, local governments are reacting by adopting new laws to regulate small cells.  Several Long Island communities recently enacted legislation seeking to regulate small cells and related wireless telecommunications equipment in public rights-of-way to the maximum extent permitted by law.  The Town of Huntington is among the latest communities to do so.

In March 2021, the Huntington Town Board adopted Local Law No. 15 of 2021, upon a determination that it was in the best interests of town residents to establish standards for the location of wireless telecommunications facilities that are consistent with the latest federal and state laws, statutes, rules and regulations in order to protect the health, safety and welfare of the Town.  The new law recognizes that it is in the best interests of residents to provide them with access to wireless telecommunications technologies, while at the same time protecting natural features, aesthetics and the character of residential neighborhoods.

The law creates standards for the design of telecommunications facilities and a priority list for their placement.  The highest preference is given to facilities placed on existing towers and structures on municipal properties and facilities, and in public rights-of-way adjacent to commercially- and industrially-zoned areas.  The next highest preference is given to existing privately-owned structures on commercially- and industrially-zoned properties, and then to existing privately-owned structures on residentially-zoned properties.  Facilities located in public rights-of-way adjacent to residentially-zoned areas are less desirable, with facilities located on new towers in residential areas being the least desirable.  To minimize the number of new facilities, the law also mandates collocation of equipment whenever possible.  It requires an applicant to demonstrate that no suitable existing structures or facilities are available for collocation within the same geographic area as the proposed facility.

In an effort to mitigate the visual impact that telecommunications facilities can have on surrounding areas, the Town’s new telecommunications law requires that all facilities adhere to certain general aesthetic requirements.  For instance, all new facilities, including supporting electrical and mechanical components, must be of a neutral color or such other color as the reviewing board may require.  They must be constructed, to the extent practicable, using materials, colors, and textures, so that they blend into the natural setting and surrounding buildings.  Any ground-mounted equipment must screened with a suitable fence and/or landscaping to maintain the aesthetic quality of the surrounding community.

The law also contains requirements that are specific to small cell nodes that are to be placed on utility poles located in, or within 100 feet of, a residential zoning district to minimize their visual and noise impacts on the surrounding area.  All equipment attached to utility poles, must be painted a solid, flat color to match the color of the pole.  In the event there is no existing utility pole or alternative structure in the area, the applicant must install the equipment within a stealth pole.  A stealth pole is a structure that allows all antennas and related equipment to be fully contained so that they are not visible.

Areas within the Town that are designated as “Hamlet Centers” and “Sensitive Locations” also have specific locational aesthetic requirements.   For instance, in Hamlet Centers, the law requires that all facilities be constructed and installed on either an existing tower or the rooftop of a commercial building setback so that they are not visible from street level.  Moreover, whenever technologically feasible, the facilities must be placed within existing architectural features, such as steeples, cupolas, bell towers or similar structures.  Where equipment is proposed to be installed in or adjacent to a Sensitive Location, the reviewing board may direct that it be installed within a stealth pole.

Huntington’s new law is not limited to the regulation of small cell nodes.  It also updates and replaces the Town’s previous telecommunications law that focused on the regulation of conventional towers and other macro sites.

As wireless service providers seek to rapidly expand their 5G networks, unduly burdensome regulations that interfere with their ability to provide upgraded technologies are likely to be met with legal challenges.  With limited application to date, only time will tell whether Huntington’s new law complies with the FCC Order.  Many Long Island communities will be watching closely to see how the local telecommunications industry reacts to the law.

On March 2, 2021 New York’s Office of Renewable Energy Siting (“ORES”) issued final regulations governing the siting of major renewable energy facilities pursuant to obligations established by the Accelerated Renewable Energy Growth and Community Benefit Act (the “Act”).  The regulations serve as a tool to achieve the climate change targets established by the Climate Leadership and Community Protection Act (“CLCPA”) and other clean energy goals and mandates.  The Act streamlines and de-couples the siting, permitting and development process of large-scale renewable (“LSR”) energy projects from the cumbersome and time-intensive requirements of Article 10.  Prior to promulgation of the Act, Article 10 provided the siting and permitting requirements for all major energy projects in NY, including LSR projects.

The finalized regulations, Title 19 of NYCRR Part 900, implement a number of conceptual changes established by the Act to improve the siting and permitting efficiency of LSR projects.

As documented in the title of the Act, the goal is to accelerate renewable energy growth.  ORES attacked the goal by creating a degree of certainty for LSR developers.  The Act and the regulations establish a framework of codified time periods and a formulaic process that LSR developers may rely on at the outset of a project, allowing LSR developers to set benchmarks and milestones at the project planning phase and to identify and leverage efficiencies.

Through the Act, the regulations (among other things):

  • establish uniform permit standards and conditions for specific classes of renewables,
  • reduce pre-application notice periods and prescribe review and response times to developer submissions,
  • limit issues subject to adjudication that arise from public comment, and
  • authorize ORES to evaluate local laws that unreasonably burden the State’s goal of achieving CLCPA targets and the environmental benefits of the LSR project, and where appropriate, waive such requirements.

The aggressive changes are intended to maximize efficiencies in the application process as well as impose deadlines on ORES final determinations. Pursuant to the Act and its implementing regulations, final ORES decisions must be issued within one-year from deeming an application complete. That timeframe is cut in half for an LSR project proposed on an existing or abandoned commercial or industrial site.  In contrast, under the Article 10 process, approvals often extended multiple-years.

While the Act and the regulations represent meaningful change to the siting process and deliver tools to achieve state-based climate change objectives, the permitting, siting and ultimate development of an LSR project remains a heavy lift.  The application process includes a robust and thorough scope.   A number of the environmental evaluations, studies and assessments remain part of the siting process, including jurisdictional wetlands, endangered species, cultural resources, among many others.  Additionally, requirements to establish funding for public input and intervenors of a potential LSR development remain an applicant obligation.  Your Farrell Fritz team of land use, environmental and municipal attorneys and professionals are your local resource to provide counsel through the LSR energy project process.

In Dodge v. Baker, Plaintiff and Defendants are neighboring property owners of two parcels of land located in the Village of Sodus (the “Village”), in Wayne County, New York (the “Parcels”).  Each parcel was created as the result of a subdivision by the original grantor, Sodus Bay Heights Land Co. (“Land Company”), at some point between 1924 and 1937.  In conjunction with that subdivision, Land Company created two restrictive covenants to which both Parcels are subject.  The first provides “[t]hat no line fence shall be erected on said lot without the written consent of the [Land Company], or its successors or assigns”, and the other provides “[t]hat no unnecessary trees or other obstructions shall be permitted on said lot which shall hide the view of other residents in Sodus Bay Heights.”

After purchasing their Parcel, Defendants applied for the necessary permits needed to put up a fence along their property line.  However, Plaintiff informed them that their proposed fence violated the restrictive covenants.  Nonetheless, the Village issued Defendants a permit and Defendants erected the fence.

Thereafter, Plaintiff commenced an action in the New York State Supreme Court, Wayne County, seeking a declaration confirming that the restrictive covenants remained valid and enforceable and that Defendants’ fence violated such covenants.  The Supreme Court denied Plaintiff’s motion for summary judgment with respect to both covenants.  On the first, it held that the Village was Land Company’s successor, and thus the Village’s written consent was sufficient to allow Defendants to construct the fence.  On the second, it determined that issues of fact existed with respect to whether the fence hides Plaintiff’s view.  Plaintiff appealed.

The Fourth Department effectively reversed.  Although it agreed that factual issues existed with respect to the second restrictive covenant concerning Plaintiff’s view, it found that the lower court erred with respect to the first restrictive covenant.  With respect to the phrase “line fence”, the Court found that no ambiguity exists and its meaning is clear.  Further, the fact that the Village issued Defendants a permit to construct the fence is of little significance, as the restrictive covenant prohibits the fence irrespective of whether the Village allows it.  Based on the plain language of the original deed, Land Company granted the Village only its property interests with respect to the Parcels, but “did not transfer its corporate identity.”  Accordingly, the Village was not Land Company’s corporate successor and thus lacked authority to permit Defendants’ construction of the fence.

The Court ultimately held that Plaintiff should have been granted summary judgment with respect to the first restrictive covenant, and it modified the order accordingly.  It also “remit[ted] the matter to the Supreme Court for further proceedings concerning any additional appropriate relief”—presumably, the issuance of an order requiring that the fence be removed.

The Public Trust Doctrine holds that when a municipality acquires land for an expressly public purpose, it cannot later sell or otherwise alienate the use of that land for private use without the State Legislature’s approval (see e.g. 10 E. Realty, LLC v Inc. Vill. of Valley Stream, 17 AD3d 474, 476 [2d Dept 2005]). The Doctrine is often raised in disputes over the sale or alienation of public parkland (see e.g. Glick v. Harvey, 25 NY3d 1175 [2015] [in which the petitioners claimed that certain lands in Greenwich Village, New York, were impliedly dedicated as public parkland); Friends of Van Cortlandt Park v City of New York, 95 NY2d 623 [2001] [involving the proposed construction of a wastewater treatment facility in a public park]). But is the Legislature’s approval required in every instance where land held in the public trust is conveyed to a private party? Not always.

In Peachin v City of Oneonta, the Third Department reaffirmed that a municipality may convey land held in the public trust to a private developer without the State Legislature’s approval where the land will continue to be dedicated to public use or public benefit. The Court’s decision is a valuable reminder for any municipality considering the development or revitalization of underutilized lands dedicated to the public trust.

In 1922, the City of Oneonta acquired 2.12 acres of land from an individual who gifted the property to the City through their last will and testament. The gift was made on the condition that the land be “limited … to City-Town-and-County Public Buildings and for Park and Municipal purposes only” (Peachin at p. 6). The City maintained the property as a public parking lot since 1933 (id. at 6-7).

Years later, the City implemented a downtown revitalization plan. Through that initiative, the City sold the property to a private party who proposed to redevelop it as a mixed-use building containing 64 affordable-housing apartments and an educational facility co-sponsored by a local college for research and development by local grain industry professionals (id. at p. 2).  A collection local business owners sued to stop the development claiming, in part, that the City violated the Public Trust Doctrine because it did not obtain the State Legislature’s approval to sell the project site to the developer (id. at pp. 3, 6).

Affirming the Supreme Court’s holding, the Appellate Division agreed that while the parking lot was held in the public trust, the City’s decision to sell the site without legislative approval did not violate the Public Trust Doctrine under the specific facts presented. The Court opined:

…[T]he parcel was conveyed for the purpose of constructing affordable workforce housing for artists and middle-income residents in connection with the City’s downtown revitalization initiative. The purchase and sale agreement included a warranty that Parkview [the developer] would construct the project in compliance with these City-approved plans and explicitly referenced low-income housing credits as part of the project financing. The residential portion of the building would “contain exhibition spaces for artists to showcase their work” and the Hartwick College Grain Innovation Center had the stated purpose of providing testing, product development and support resources for small-scale, local grain industry professionals. In other contexts, this Court has found the construction of certain affordable housing to be a “public use” (Matter of Keegan v City of Hudson, 23 AD3d 742, 743 [2005], lv denied 6 NY3d 705 [2006]; see Matter of Russin v Town of Union of Broome County, 133 AD2d 1014, 1015 [1987]), and, when considering the educational and revitalization components of the plan, we are persuaded that the project may be fairly characterized as such (Peachin at p. 7).

Thus, the Third Department held that the State Legislature’s approval was not a prerequisite to the sale of the City’s property (id.).

Again, the Court’s decision in Peachin is potentially valuable precedent for the development or redevelopment of lands held in the public trust. A question not addressed in Peachin, however, is what happens in the future when the property sold stops being used for its stated public purpose(s) and is redeveloped yet again, but for a strictly private purpose? Will the State Legislature’s approval be required then? A question for another time.

“An ounce of prevention is worth a pound of cure.” -Benjamin Franklin.  This pithy logic from Benjamin Franklin to prevent fires in colonial Philadelphia should serve as a reminder to municipal boards of the strict compliance required by New York’s General Municipal Law (GML) §239-m mandated by the courts.  In New York, the failure to refer certain actions to the respective county planning board may result in invalidating such actions, effectively “burning down” an intended zoning amendment.

Prior to adopting any new provisions or amendments to its zoning code, GML §239-m(3)(a)(ii), a municipal body must “refer” the “adoption or amendment of a zoning ordinance or local law” to the county planning board or agency or regional planning council for review and recommendations.  GML §239-m goes on to require such municipal to submit to the county planning agency a “full statement of such proposed action.”  A ““full statement of such proposed action,” is defined as “all materials required by and submitted to the referring body as an application on a proposed action, including a completed environmental assessment form and all other materials required by such referring body in order to make its determination of significance pursuant to [SEQRA]”.  However, if a regional planning board fails to act within 30 days, a referring entity may then take “final action” on the proposal without the planning board report.

Notably, the law is well settled that failure to comply with the referral requirements of GML §239-m is a jurisdictional defect rendering the enactment invalid.  Failure to comply with this provision can make the county referral process an Achilles heel of zoning amendments in New York. Caruso v. Oyster Bay 172 Misc. 2d 93, 97 [NY Sup Ct 1997], affirmed 250 AD2d 639 [2d Dept. 1997]. See generally, Favre v. Town of Highlands 185 AD 3.d 681 [2d Dept. 2020].

Finally, where the legal challenge seeks to declare a legislative action, like a zoning code amendment, invalid, the six-year statute of limitations is applicable.  Practitioners are also reminded that a declaratory judgment action, not an Article 78 proceeding, is the proper method to a potential GML §239-m violation.

 

Plaintiffs own property in the Village of Freeport on Randall Bay and granted a drainage easement to the Village in 1961. The easement, dated September 6, 1961, allowed the Village to “construct and maintain one underground storm water drain and one tide gate accessory thereto for drainage purposes.” The Village constructed a drain pipe which was encased in a wooden bulkhead, from the road over the easement premises to Randall Bay. The Village replaced the pipe and bulkhead in 1987 and it had since fallen into disrepair causing numerous sinkholes in the easement area. Plaintiffs requested that the Village repair the drain pipe and bulkhead and the Village refused causing the Plaintiffs to bring this action.

In Anson v. Inc. Village of Freeport, Supreme Court, Nassau County, Index No. 8735-2015, May 1, 2018, the court held for the Village stating, “the Village has shown that the bulkhead is not part of the drainage easement.” The Village of Freeport alleged that it was not required to maintain the bulkhead since it was not included in the obligations outlined in the easement. Reviewing the standards for summary judgment, the court found that the Village “established its prima facie entitlement to judgment as a matter of law” and held that the Village was not responsible for the “repair, maintenance or replacement of the wooden bulkhead.” The court granted the Village’s motion for summary judgment.

By decision dated, April 14, 2021,the Appellate Division, Second Department reversed the Supreme Court holding, in part. After finding that the plaintiff’s claim was not time barred, the Court held that the plaintiffs were entitled to judgment as a matter of law on two causes of action. The Court found that the plaintiffs established that the bulkhead was in fact an integral part of the storm water drainage system currently maintained in the easement area by the Village. The Court stated, “inasmuch as the easement agreement did not place affirmative responsibility for maintenance of those premises upon the owners of the servient estate, it was the Village’s obligation to maintain the bulkhead (see Tagle v. Jakob, 97 NY2d 165, 168; Raskin v. Crown-Kingston Realty Assoc., 254 AD2d 472, 473)…Accordingly, the plaintiffs were entitled to a judgment declaring that the Village is required to maintain the easement premises, including the bulkhead, in a proper and safe condition, and an injunction requiring the Village to do so.”

However, the Court denied the plaintiff’s claim which sought to enjoin the Village from removing the bulkhead or from configuring the storm water pipe and tide gate to allow water to drain on any portion of plaintiff’s property.   The Court found that plaintiffs failed to prove the standards required for the issuance of a preliminary injunction including, “a violation of a right presently occurring or threatened and imminent, that they had no adequate remedy at law, that serious and irreparable harm would result absent the injunction and that the balance of equities are in their favor.” Specifically, the Court held that there was no evidence “showing that the Village had undertaken any action toward, or even contemplated, removing the bulkhead or allowing water to drain on to their property.” Ultimately, the Court remanded the matter to the Supreme Court for further proceedings on the complaint and for the entry of judgment declaring that the Village is required to maintain the easement premises, including the bulkhead, in a proper and safe condition.

This month, in Gershow Recycling of Riverhead v Town of Riverhead, 2021 NY Slip Op 02156 [2d Dept 2021], the Appellate Division, Second Department, affirmed the motion court’s decision granting an Article 78 petition to annul the denial of a site plan amendment application. The motion court and the appeals court held the denial exceeded the scope of delegable power under the then-applicable Town Code and N.Y. Town Law Section 274-a, and remanded to the Planning Board for further consideration.

In November 20211, the petitioners-plaintiffs (“Petitioners”) purchased property upon which the prior owner operated an auto salvage facility. The auto salvage use constituted a pre-existing, non-conforming use (“PNCU”). In July 2012, Petitioners submitted a site plan to the Town of Riverhead (“Riverhead”) Planning Department and Building Department to perform regrading, drainage, paving and landscaping work, among other things. These departments jointly determined the site plan contained de minimus alterations, so the proposed work was exempt from site plan review pursuant to the Riverhead Town Code.

In November 2013, after Petitioner commenced operations at the premises. Riverhead identified certain improvements that did not appear on the original site plan, and requested Petitioners submit an amended site plan.  Petitioners submitted an amended site plan to the Riverhead Planning Department reflecting additional “as-built” improvements. The Riverhead Planning Department denied the application, and referred it to the Riverhead Planning Board for formal approval.

In early April 2014, the Riverhead Planning Board conducted a public hearing on the amended site plan. While Petitioners’ application was pending, in mid-April 2014, the Riverhead Town Board resolved to authorize the Riverhead Town Attorney to commence an action for declaratory, injunctive, and monetary relief against Petitioners on the basis that Petitioners’ use of the site violated the Riverhead Town Code. Riverhead determined the PNCU was an auto salvage yard, and Petitioners were operating a “recycling” or “scrap metal” and “other material unrelated to an auto salvage yard.” Thus, Petitioners illegally changed  the use or illegally expanded the PNCU.

In July 2014, Riverhead’s Building and Planning Administrator (“Administrator”) informed Petitioners that then-existing Riverhead Town Code Sections 26-18 and 26-20 gave him the authority to make, issue, and render determinations regarding compliance with provisions of the zoning ordinance for site plan applications. The Administrator concluded Petitioners’ proposed use of the site was “clearly not an allowed use in the zoning district,” and that Petitioners converted use of the site from the PNCU auto salvage yard into a recycling center. Based upon his conclusions, the Administrator denied the site plan amendment application, and advised Petitioners they could appeal to the Riverhead Zoning Board of Appeals (“Riverhead ZBA”), i.e. Petitioners’ administrative remedy.

Petitioners commenced this hybrid action-proceeding against Riverhead and the Administrator, et al. (collectively, Respondents”), to review and annul the Administrator’s determination. Respondents moved to dismiss. The Supreme Court, Suffolk County, denied Respondents’ motion to dismiss, granted Petitioners’ Article 78 petition, annulled the Administrator’s determination, and remitted the matter to the Riverhead Planning Board. Respondents appealed and the Second Department affirmed.

By Order dated June 12, 2017, the Suffolk County Supreme Court held the then-existing Riverhead Town Code did not authorize the Administrator to approve or deny applications; this authority is is vested in the Planning Board under the Riverhead Town Code and the N.Y. Town Law. More specifically, the Town Code at-the-time only authorized the Administrator to review, evaluate, judge, and advise on applications, and to make, issue, and render determinations regarding compliance. Nothing authorized the Administrator to deny an application submitted to the Riverhead Planning Board.

The Supreme Court also emphasized N.Y. Town Law Section 274-a, which governs site plan review, does not include “the issue of use of property” within its scope, and a use may not be disapproved “under the guise of denying site plan approval.” Accordingly, the Supreme Court annulled and vacated the Administrator’s denial, and remanded Petitioners’ application to the Planning Board.

On appeal, the Second Department agreed the Riverhead Town Code did not authorize the Administrator to act on a site plan application because it delegated this authority to the Planning Board:

“[F]ormer [Section] 108-129(A) stated . . . the Town Board hereby authorizes the Planning Board, pursuant to [Section] 274-a of the Town Law, to review and approve, approve with modifications, or disapprove site plans . . . Under the principles of statutory construction, whenever there is a general and a specific provision in the same statute, the general applies only where the particular enactment is inapplicable. Accordingly, the specific provisions of the Town Code that gave the Planning Board the authority to act on site plan applications must control here.”

The Second Department also noted the Administrator’s denial of the site plan application was an action wholly beyond his grant of power, and Petitioners were not required to exhaust administrative remedies by appealing to the Riverhead ZBA.

The Courts’ decisions remind applicants and municipalities that determinations regarding interpretations of the the zoning code, i.e. uses of a particular site, are outside the scope of site plan review. While N.Y. Town Law Section 274-a empowers the authorized board to impose reasonable conditions and restrictions directly related to or incidental to a site plan, determinations as to uses are reserved to building departments and zoning boards.